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October 25, 2011 Articles

The National Conference on Children and the Law

By David Lansner

The ABA Center on Children and the Law presented two excellent conferences this summer. The first was "Improving Representation in the Child Welfare System: The Second National Parents' Attorneys Conference," which was held July 13–14, 2011. That conference is discussed in some detail in the article "Conference Provides Resources for Parents' Attorneys." The second conference was the 14th ABA National Conference on Children and the Law, which was held July 15–16, 2011, and it provided advice and training for attorneys representing children. Both conferences included nuts-and-bolts sessions for handling cases; reports on new research on children, families, education, and medicine; and panels discussing important policy issues in the field.

The Children's Attorneys Conference
During this conference, there were excellent sessions on both policy and practicing, including ethics. Among the additional problems covered in this conference were improving educational outcomes for foster children; the health-care needs of foster children; the legal paths for kinship caregivers; identity theft from foster children; youth aging out of foster care; homeless and runaway youth; the reinstatement of parental rights; drug courts; the issues related to lesbian, gay, bisexual, transgender, and questioning (LGBTQ) youth; counseling child clients; the psychotropic medication of children in foster care; reducing bullying; implementing the Fostering Connections Act; compassion fatigue; pre- and post-natal alcohol abuse; the effect of exposure to domestic violence; and children testifying in child-welfare court proceedings.

Attendees were able to receive the first findings from the National Quality Improvement Center on the Representation of Children in the Child Welfare System (QIC-ChildRep) on Best Practices & Research on the Legal Representation of Children from Professor Donald Duquette of the University of Michigan Law School.

Several policy sessions at both conferences covered the consequences of the Adoption and Safe Families Act (ASFA), which has forced states to begin termination of parental rights proceedings much sooner, even before there is an adoptive resource for the child. This policy may have resulted in more "legal orphans"—children who are freed for adoption but never adopted. Such children stay in foster care until they "age out" and are discharged to live on their own. Many wind up on the streets or in prison. One session followed up on this problem. American policy on child welfare has long emphasized the need for permanency for children in foster care, and it has often been used as justification for terminating parental rights and having children adopted. The Children's Law Center in New York City and a parents' attorney presented research that showed that many children who were adopted out of foster care did not live out their minority with their adoptive parents. They returned to their birth parents or ran away to the streets, or they were placed back in foster care by the adoptive parents.

The panelists suggested that termination and adoption did not always result in permanency, and attorneys for children should look very carefully at a case before supporting termination of parental rights.

There was a terrific plenary about former foster youth who were part of FosterClub, a program that exists to empower foster youth and train them in how to use their story and experience to speak to audiences about needed changes within the foster-care system. Three former foster youth spoke articulately about their experience.

New Trends in Representation
In a sign of the growing influence of advocates for families and their preservation, more than 300 attorneys attended the parent representation conference—twice as many as attended the conference for children's attorneys.

Children's attorneys have a well-established membership organization: The National Association of Counsel for Children (NACC). NACC provides a newsletter, a listserv, books and manuals, a brief bank, training, amicus briefs, public-policy activities, and other services to its members and advances its positions on how children should be treated in the child-welfare system. NACC is directed by its members.

Children's attorneys also have the resources of the ABA Center on Children and the Law, a superb resource that provides the same services. It has two listservs, one for children's attorneys and one for parents' attorneys (although anyone, including non-ABA members and nonattorneys, can participate on both listservs). However, the ABA Center is not a membership organization; it is directed by ABA management. Attorneys in the field, even ABA members, have no control over it.

Over the years, both organizations have moved from a position of intervention to a position focused on family integrity. Those positions could also be called pro-government and pro-parent. In the past, those who mainly represented children in juvenile court, and even some of those who represented the government agencies that prosecute parents in juvenile court, have used the term "pro-child" to describe the positions they take. However, many lawyers have moved beyond that in recognition of the fact that everyone working in child welfare either is or claims to be pro-child. The organizations are ahead of the curve nationally, although the federal government has moved from ASFA ("safety" and termination) in 1995 to Fostering Connections in 2008. We have seen a national reduction in foster care of almost 20 percent—although it is unclear exactly what the factors are that led to the decrease—and the substantial reform of several child-protective systems. But the change in thinking and speaking by the children's bar is perhaps the most significant sign of where we are going.

Of significance was the invitation to Richard Wexler, a long-time critic of child-protective systems, as one of the panelists at the opening session of the children's attorneys conference on countering public myths and stereotypes in child-welfare proceedings.

The ABA Center on Children and the Law convenes these conferences every other year, so the next set of conferences will be held in 2013.

Keywords: litigation, children's rights, ABA National Conference on Children and the Law, ABA Center on Children and the Law, child-protective systems

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David Lansner — October 25, 2011